Human Rights Watch World Report 1996 - Peru

Human Rights Developments

After a comfortable victory in presidential elections held on April 9 and with a majority in the legislature, President Alberto Fujimori began his second term of office on July 28 with an agenda to modernize Peru. On June 14 the Democratic Constituent Congress (CCD) passed a sweeping amnesty benefiting scores of military and police personnel implicated in serious human rights crimes during the fifteen-year war against Shining Path (Sendero Luminoso) and other violent groups. This scandalous gift of impunity to the army and police, which was repudiated by public opinion and by many of Fujimori's own supporters, was not balanced by any relaxation of the draconian anti-terrorist measures in force. In October, Congress passed a law extending for a further year the system of so-called faceless courts, set up in April 1992 to facilitate summary trials of terrorist suspects. These courts had resulted in hundreds of arbitrary convictions after unfair trials, but no measures were taken to review them. In August, the government promulgated a law defining the functions and powers of a defensor del pueblo (ombudsman), a new institution contemplated in the 1993 constitution to monitor and protect human rights.

In spite of frequent government statements claiming that the violence of Shining Path had been brought under control, 45 percent of Peru's population continued to live under states of emergency, effectively military rule. Pockets of the country were still significantly affected by political violence, especially the jungle region of Huánuco, San Martín, Ucayali, and Loreto, parts of which are also centers of narcotics trafficking. Lima was not immune either: in May its inhabitants suffered a dramatic reminder of the violence of earlier years when a car bomb planted by a Shining Path squad exploded in the center of the Miraflores business district, killing five people.

Tactics used by violent groups, particularly Shining Path, continued to violate basic standards of international humanitarian law, and killings of civilians by this group this year outnumbered those committed by government forces. They included selective assassinations of local authorities and reprisals against civilians accused of betrayal or collaboration with the army and peasant self-defense groups (rondas campesinas), as well as indiscriminate violence against civilians, such as the María Angola attack. On May 12, about twenty Shining Path guerrillas entered the community of San José de Belén, Huancavélica, whose inhabitants had recently returned after leaving the zone for the relative safety of Huancayo. The guerrillas demanded payment of a war tax of 1,000 soles (approximately US$450), which the villagers were unable to pay. A survivor told how the guerrillas then murdered six of the villagers and burned their homes.

The number of extrajudicial executions and disappearances attributed to government forces continued to decline. Human rights groups documented three extrajudicial executions and nine disappearances in the first nine months of the year. All but two of the disappearances occurred in the department of Ucayali, which is under emergency rule by a political-military command garrisoned by the Navy (Marina de Guerra). The navy base at Aguaytía has been the site of several documented cases of torture, extrajudicial executions, and disappearances. Marines from Aguaytía were allegedly responsible for the death in April of seventeen-year-old Indalecio Pomatanta Albarrán. While searching his home for terrorists, marines doused him with gasoline and set him on fire, according to his parents' testimony to a court investigator. Pomatante died in the hospital of second degree burns over 65 percent of his body. In a televised death-bed interview he told reporters that his Navy attackers made two unsuccessful attempts before setting him alight. Torture was endemic and systematic in this zone: Justiniano Hurtado Rorres, detained on November 21, 1994, and Tomás Flores Huanío, detained on April 19, 1995, died subsequently of their injuries. The whereabouts of six people detained by the marines between January and July in the area is still unknown.

The practice of torture is not limited to counterinsurgency but is a routine adjunct to police investigation in Peru, although its severity seems to depend on the social class and resources of the victim. The public prosecutor's office, which is nominally required to safeguard the rights of detainees is ineffective, in part because it is also responsible for leading criminal prosecutions. A case in which the prosecutor notably failed to protect a victim was that of student Jhoel Huamán García, who was beaten to death by police in Cerro de Pasco. Huamán's captors, acting without a warrant, pulled him out of a football game on May 26, following an apparently mistaken accusation by a robbery victim, and took him for interrogation. His father testified in court that drunken police celebrating a birthday in the precinct tortured and beat Huamán mercilessly. They then ordered him to be taken to a hospital, where he was dead on arrival from a cerebral hemorrhage and severe internal injuries, according to an autopsy report. The police claimed that Huamán "fell on his back after suffering convulsions provoked by the interrogation." Asked to clarify Huamán's legal situation, the prosecutor told Huamán's father, "We'll sort it out tomorrow." By the next day the youth was dead.

The special faceless courts set up under the anti-terrorist law of May 6, 1992, which allow suspects to be tried through one-way mirrors by prosecutors and judges whose identity is concealed, continued to violate the most basic due process guarantees. Secret military tribunals which hear cases under the Treason Law provide even fewer guarantees: only one of the panel of five judges is an attorney, and the remainder are career officers on active service. In Peru: The Two Faces of Justice, released in July, Human Rights Watch/Americas highlighted nine terrorism and treason cases in which innocent people had been handed down sentences ranging from ten years to life imprisonment by these courts. The probable number of unjust convictions was close to seven hundred, according to Peruvian nongovernmental human rights organizations. Confessed guerillas who gave themselves up under the 1992 Repentance Law implicated many innocent people in order to get their own sentences suspended or reduced. On April 19, with the support of both the public prosecutor's office and the Supreme Court, the CCD passed a reform abolishing the faceless courts with effect from October 15, on the grounds that the menace of political violence had abated. However, on September 27 President Fujimori sent an urgent bill to Congress for the deadline to be extended, and Congress voted that the courts should continue to function until October 1996. In striking contrast with the celerity of this decision, a proposal suggested by Fujimori in July for Congress to appoint a special commission to review cases of unfair imprisonment came to nothing.

In an ominous new development, the Supreme Court began to overrule acquittals by faceless courts on purely procedural grounds and ordered cases to be reopened, placing former prisoners in danger of rearrest. Thus the procedural vices of the faceless courts are now prejudicing those the courts find innocent as well as those they have convicted.

In the early hours of June 14, Congress passed a law granting amnesty to military or police personnel and civilians convicted or implicated in human rights crimes during the fifteen year counterinsurgency war. The law required the immediate release of all those convicted or indicted, as well as that all mention of them in police or court records be struck out. It also expressly prohibited new investigations or prosecution of perpetrators who had not yet been identified. The law, one of the most sweeping ever passed in the hemisphere, was presented to Congress without warning, scarcely debated, and promulgated on the following day by Fujimori before the populace and international public opinion had time to react. During the next week, eight members of the Colina Group, an army death squad, who had been convicted and imprisoned for the abduction and murder of nine students and a teacher from the La Cantuta University, walked free. So did those responsible for a 1986 prison massacre and an army lieutenant sentenced to ten years for the slaying of fifteen peasants in Santa Bárbara, Huancavelica, in 1991. The law also granted amnesty to some twenty-six military officers who participated in discussions about ousting Fujimori in November 1993, and to a group of officers who had been charged and imprisoned for criticizing government policy during the border conflict with Ecuador (see below).

The law was sprung on Congress by a pro-Fujimori deputy soon after the surprise reopening of a case involving the slaying in November 1991 of fifteen people at a party in the Lima neighborhood of Barrios Altos, in which members of the Colina group were also implicated. Prosecutor Ana Cecilia Magallanes reopened the case in April and named five army officers, including General Julio Salazar Monroe, head of the National Intelligence Service (Servicio de Inteligencia Nacional, SIN) as responsible. Four of them had been convicted already for involvement in the Cantuta case. Judge Antonia Saquicuray Sánchez opened a formal investigation and ordered the commander-in-chief of the army, Nicolás de Bari Hermosa Ríos, and Vladimiro Montesinos, a close Fujimori advisor and intelligence figure, to appear as witnesses. Following the promulgation of the amnesty law, Judge Saquicuray ruled that the it was inapplicable to the Barrios Altos case on the grounds that it violated Peru's constitution and international obligations under the American Convention on Human Rights. Despite a warning by the public prosecutor that she might be charged with prevaricato (breach of public duty), Saquicuray insisted to the Supreme Court on her duty to continue the investigation, and the court's senior prosecutor ruled in her favor. The government reacted by railroading a new law through Congress on June 28 which effectively obligated judges to grant the amnesty. On July 13 the court ruled two to one to apply the amnesty, closing the case. Other cases were closed in the weeks that followed.

Freedom of speech remained a precarious right. In April two retired army generals, Walter Ledesma Rebaza and Carlos Mauricio Agurto, were detained and prosecuted before a military tribunal for "insulting the armed forces and the nation" solely because they had commented critically on the army's conduct of the border conflict with Ecuador in February 1995. Both former officers were supporters of opposition candidate Javier Pérez de Cuellar. Ledesma, who was retired prematurely in 1994, was sentenced in May to forty days in detention because of an interview he gave to the weekly magazine Caretas. Ledesma and Mauricio were absolved under the amnesty law.

The Right To Monitor

The position of defensor del pueblo (ombudsman), created in August, had not been filled as of this writing. The appointment requires a two-thirds majority in Congress. Although an initial version of the legislation establishing the position would have given the defensor the authority to enter military premises, have access to classified information, and order the prosecution of officials who refused to cooperate with his or her investigations, these powers were cut from what became law.

In June and early July several human rights lawyers working on the Barrios Altos case, as well as relatives of the victims, received anonymous death threats. The circumstances suggested a concerted operation by military intelligence agents to scare them off the case. Gloria Cano Lengua, of the nongovernmental Association for Human Rights (Asociación Pro-Derechos Humanos, APRODEH) received death threats by telephone in her office. Dr. Guido Gallegos of the Vicaría de Derechos Humanos de Juli, a church-based group in Puno, received an anonymous death note and threatening phone calls from a group calling itself the Patriotic Military Front. On July 8, the Lima offices of the Ecumenical Human Rights Commission (Comisión Ecuménica de Derechos Humanos, COMISEDH) were broken into in the early morning; files were searched and diskettes and other materials handled. General Rodolfo Robles Espinoza, who was cashiered from the army for revealing the participation of the Colina Group in disappearances, received death threats following his return in June from exile in Argentina.

U.S. Policy

The Clinton administration continued to push behind the scenes for piecemeal improvements in Peru's human rights performance, while trying to avoid giving Fujimori an opportunity to dismiss human rights concerns by claiming to be "standing up to the U.S.," as he has done on several occasions in the past. While this "quiet diplomacy" has been useful in some cases, we have consistently urged the administration to use public pressure when private communication fails.

The State Department issued an unusually forthright statement condemning the amnesty law promulgated in June. The June 15 statement by spokesman Nicholas Burns read in part: "We are deeply concerned at both the substance of the law and the peremptory manner in which it was passed. We regret that President Fujimori has signed the bill into law. Doing so demonstrates to the world a lack of serious commitment to the protection of human rights, a principle on which there is broad hemispheric consensus." This statement was an unprecedented declaration of principle on the issue of accountability, giving valuable moral support to relatives of victims of human rights violations and human rights groups. Regrettably, the State Department was silent when Fujimori renewed the faceless courts in October. The administration may have been seeking to avoid a repetition of the Peruvian government's hostile reaction to the findings of the Goldman Commission, a panel of international jurists established in 1993 by the Clinton administration, with the acquiescence of the Fujimori government, to review anti-terrorist legislation. Since the commission reported, the State Department has implicitly distanced itself from the commission's recommendations rather than press publicly for their immediate implementation. While the Goldman Commission called for the government to end trials of civilians by military courts, the Clinton administration apparently believes that this system is reformable.

Plans are underway for a program of U.S. human rights training for military prosecutors and judges to begin in early 1996, according to officials of the U.S. Embassy, a move we consider ill-advised. Military courts, which have a deplorable record of due process violations and a lack of independence and impartiality, should not receive U.S. assistance or training. Any assistance provided to the judiciary should be channeled instead to support an independent review of unfair convictions by military tribunals and faceless courts. In addition, the State Department should deny visas to military and former military personnel released under the amnesty law.

The need to secure Peruvian government cooperation with the U.S. anti-narcotics program has been another factor limiting a more public administration profile on human rights. The administration will spend approximately $18 million assisting Peru's anti-narcotics police force in fiscal year 1996, roughly the same level of assistance provided in past years. An effort by the administration to provide approximately $1 million in military assistance as part of its counternarcotics package for fiscal year 1996 was dropped in the wake of strong congressional opposition. Aid to the military has been limited to training since fiscal 1991. Human Rights Watch/Americas strongly opposes police aid on the grounds that the Peruvian police continue to engage with impunity in systematic human rights abuse, particularly torture. Furthermore, drug traffickers, like violent oppositionists, continued to be tried by military tribunals for "treason," with attendant due process violations.

The Work of Human Rights Watch/Americas

Of Peru's many human rights problems, the deplorable state of the justice system stands out insharp relief, and the main focus of our work was to bring this concern to international attention. In July we published a fifty-page report, Peru: the Two Faces of Justice, which analyzed the workings of the anti-terrorist law, the faceless courts, and military tribunals, describing in detail the Kafkaesque situation faced by innocent people accused of terrorism and the mechanisms which have ensured impunity for those guilty of horrific human rights crimes. The report also described and condemned the so-called popular trials carried out by Shining Path, which were often a prelude to cold-blooded murder. In a speech to the U.N. Human Rights Commission in Geneva in February, we highlighted the use of torture and arbitrary detention in Peru through the faceless courts system. In addition, we litigated several cases through the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. In one of these, the Case of Neira Alegría (commonly known as "El Frontón," after the prison where the petitioners were detained), the court found in January that Peru had violated the right to life and the right of habeas corpus of three detainees, ordering Peru to pay their families compensation in an amount to be agreed upon by Peru and the commission.

In February a Human Rights Watch/Americas representative visited Peru during Fujimori's campaign for re-election. Irregularities such as the distribution of pro-Fujimori propaganda by military officers and public officials, the illegal issuing of voting credentials to members of the military, and harassment of opposition candidates, marred the campaign at numerous junctures, at times throwing into question the credibility of the electoral process. In March we wrote to President Fujimori describing abuses we had confirmed during our visit, and calling on him to prevent their repetition. We also sent our findings to César Gaviria, the Secretary General of the Organization of American States (OAS), which had a mission in Peru monitoring the elections, urging him to make the commission's findings public. During the last week of March, the OAS official in charge of the monitoring effort announced that his report would be made available to Peruvian political parties, as well as the government.